Before Christmas it truly escalated with the Convener calling a secret meeting of commissioners in an attempt to purportedly overturn the decisions taken at Brora, including the call for him to resign. He failed. Things did not go well for him either, a few days later, at the scheduled meeting of the board on 14 December. That board meeting was covered by BBC Alba and we reproduce here their full report:-

Iain Maclean (presenter) highlighted the matter at the outset of the evening news headlines:-

This evening, more chaos and controversy surrounding the Crofting Commission as two officials refuse to attend a board meeting, they say that they cannot work with the current board. Three co conveners, have asked the Scottish Parliament for an intervention in relation to Colin Kennedy.

Tavish Scott MSP was interviewed stating that:-

The Crofting Commission has failed now to work for crofters, it’s now a mess, it’s now working in an extraordinary manner, involving people leaving the room and not working with the current Chairman.

Then when it came to the full report the presenter, Iain Maclean, stated:-

We start tonight with more absolute crofter chaos, after two officials have refused to attend meetings. They maintain that they cannot possibly work with the current board. This follows from the events that unfolded at the last meeting in Brora. Let us look at today’s meeting in Inverness with Donald Lamont.

Colin Kennedy, Convener of the Crofting Commission, was reportedly looking “very uncomfortable” at the board meeting in Inverness on 14 December 2016

Donald Lamont, reporting from Inverness, told us:-

Everything seemed very wrong at today’s meeting in Inverness, first of all it was obvious that not everyone was present. Two officials refused to attend and were not present. This suggests that things are coming to a head for Colin Kennedy, who looked very uncomfortable today.

Bill Barron. Interim Chief Executive of the Crofting Commission, was then interviewed. He said:-

It’s very regrettable to me that two of my staff didn’t feel comfortable coming to the meeting. That’s because, one commissioner has made various allegations, criticisms, about what they have done in recent months. They find that unacceptable and I’m supporting their position on that.

Donald Lamont continued:-

One can understand with this news, some of the commissioners are very angry, David Campbell being one of them.

Footage was then shown of the meeting itself with David Campbell saying to the board:-

This is extremely disturbing, extremely disturbing, the most disturbing thing I’ve come across in my time on this board… that two members of staff, by the sounds of what you said there, feel unable to be present here and by your description are unable to work with this board directly in a public forum… that gives me grave, grave concerns.

Donald Lamont went on to say:-

Few of the commissioners still support Kennedy, but things are far from right amongst the board. With the Commission’s own situation, it is obvious that the crofters themselves are no longer the priority.

Then back to Bill Barron who elaborated:-

On Friday we accepted that it was one continuous meeting in two valid parts. What happened today was that we approved the vast majority of the minutes of that meeting. There are two issues still to be ironed out on that. We also noted that there are some doubts about the way the piece of business that led to the motion against the convener, the way that was called, but the commission decided to take no particular further action on that.

Iain Maclean (presenter) then came back on air to say:-

We now go to Holyrood to our political correspondent Niall O’Gallagher.

Niall O’Gallagher, reporting from Holyrood, advised:-

They have now moved their business from the Highlands to Edinburgh in relation to the Kennedy situation. We had three political figures from Labour, SNP and the Lib Dems come together to say that, the minister concerned, Fergus Ewing, needs to remove Colin Kennedy from the Commission to move forward. Talking to us is Lib Dem, Tavish Scott.

Tavish Scott MSP said:-

The Crofters Commission cannot carry on with the chairman it’s currently got, and the dysfunctional nature of the organisation where the senior staff meant to work together for the crofters are instead fighting like ferrets in a sack. This has got to change. The minister would have my full support if he now steps in, makes the changes that need to happen, including getting rid of the current chairman, and getting the organisation back to doing what it’s meant to do and that is serving the crofters.

Niall O’Gallagher then continued:-

Other than questions and concerns about the people involved in the Commission at the moment, there is also questions about the work that they actually do. The opinion many have of the Commission is not a good one, they are not seen to be working to help the crofters who should be their prime concern. Talking to us from the SNP is Kate Forbes.

Kate Forbes MSP said:-

We need to do something. Next year will be a very important year, they will have elections. We need to change the situation now!

Presenter, Iain Maclean, returned:-

Thank you Kate, now back to Niall at Holyrood. What is happening at parliament this evening?

Niall O’Gallagher then rounded matters off from Holyrood:-

We didn’t get a chance to speak to Fergus Ewing tonight. The parliament’s view is that they don’t want anyone with bad intentions within the Commission. We managed to have a few words with Alasdair Allan. Talking on behalf of the government he said that there would be an opportunity to pick new commissioners but that it was not for Holyrood to make any quick impulse decisions.

It was also reported online on BBC Naidheachdan that Professor Donald Meek from Tiree, who attended the meeting at Holyrood, had said that all the uncertainty was doing great harm. He is quoted as saying:-

What I realised this evening, was that I was very familiar with the old Commission.

Whatever was happening with the old Commission, there was never any uncertainty about the Commission’s own situation.

The Commission was somewhat subtle, stable, and although you were now and again not in agreement with the Commission, the Commission was still a guiding stone for crofting affairs.

That is not true now at all, ever since the uncertainty arose in relation to those leading, those who shouldn’t even be there, so on and so forth.

View from the Crofting Law Blog

It is clear (if it was not already) that all is not well at Great Glen House. Now senior employees of the Crofting Commission are refusing to attend board meetings purportedly due to issues involving the Convener.

Despite attempts by the Convener to reverse or nullify the decisions taken by the board at Brora he has failed to do so.

Indeed Bill Barron, Interim Chief Executive to the Crofting Commission, clarified to the Cross Party Group on Crofting at Holyrood, that six commissioners had asked the Convener to stand down at the Brora meeting and have not recanted on that. The Convener has chosen not to.

Investigations concerning a complaint made by the Convener against Fergus Ewing MSP, Cabinet Secretary with responsibility for crofting, appear to still be ongoing. The Scottish Ministers have, it would seem, been paralysed from taking any action concerning the position of convener pending the outcome of those investigations, despite the fact that it remains within their power to do so.

Perhaps the New Year will see this mess unravel and be properly sorted in the way I suggested it should have been back in April 2016. Eight months is hardy a period that would allow Scottish Ministers to be accused of making “quick impulse decisions” as Alasdair Allan MSP suggested might be the case to BBC Alba!

Was there an elephant in the room at the crofting cross-party group meeting?

The cross-party group on crofting met last Wednesday at Holyrood.

It was very ably chaired by Tavish Scott MSP. He is one of the three co-conveners of the group, having been elected along with Kate Forbes MSP at the last meeting to replace Michael Russell MSP after Mr Russell became Brexit Minister. Rhoda Grant MSP is the third co-convener of the group.

Mr Ewing outlined all that the Scottish Government is currently doing to assist crofting and its future.

In particular he discussed future crofting law reform. The Scottish Government wants to modernise crofting law and make it transparent, understandable and workable in practice. Mr Ewing made it clear that they very much wanted to listen with no precise timetable in mind.

Mr Ewing stressed the importance of taking time to get it right. I couldn’t endorse that view more and trust that we won’t see the chaos of a huge number of last minute amendments that was encountered in creating the Crofting Reform (Scotland) Bill in 2010. That was possibly partly responsible for many of the issues (not common grazings ones that were not affected by the 2010 legislation) that has led to the current Scottish Government having to tackle crofting law reform so soon again.

After Mr Ewing left the meeting we continued with the topic of crofting law reform. Derek Flyn outlined the background to the crofting law sump report which he described as a “collection of what is wrong with crofting law”.

Michael O’Neil, the newly appointed Head of the Scottish Government Legislation Team, then outlined proposals to take crofting law reform forward.

Mr O’Neil indicated his intention to involve as wide a range of stakeholders as possible. He will get out and about and meet anyone he needs to speak with.

He will refer to the information contained in the crofting law sump and in the Shucksmith Report.

Some questions Mr O’Neil had in mind included:-

Why do we need crofting legislation?

What changes need to be made to it?

How do we go about delivering the changes identified?

Are there other options to new legislation?

A small team has been assembled by the Scottish Government to take crofting law reform forward.

It will be interesting to see this process move forward and we will keep you posted on the Crofting Law Blog as it does.

Bill Barron, the new Chief Executive of the Crofting Commission, was attending his first cross party group meeting. On the agenda was an “update on grazing committee removals and other current Crofting Commission business”. He appeared to dodge being able to provide that update on the basis that it was his fifth day in the job.

However, sitting next to him was the Convener of the Crofting Commission, Colin Kennedy. Mr Kennedy did not offer an update on grazing committee removals and other current Crofting Commission business. Indeed, other than to introduce himself as all attendees did at the outset, Mr Kennedy sat silent throughout the entire meeting. He didn’t speak and no one asked him to speak.

This was, of course, the first crofting cross-party group meeting that Mr Kennedy has attended in this session of Parliament, having avoided the last two. He has thus not expressed the views of the Crofting Commission to the cross-party group since this session of Parliament commenced.

This week the Scottish Crofting Federation called the Convener of the Crofting Commission, Colin Kennedy, a deluded despot. Perhaps they are now thinking that an elective despotism is not the Crofting Commission they fought for.

An elected Crofting Commission (6 out of the 9 commissioners – with the other 3 being appointed) was introduced by the Crofting Reform (Scotland) Act 2010. The Scottish Crofting Federation supported this move. Before that all commissioners of the Crofters Commission were appointed.

At the time the then environment minister, Stewart Stevenson, said:-

The Scottish government wants to give crofters a voice to determine their own future and these first ever Crofting Commission elections is a solid step down that road.

The Scottish government believes crofts that are occupied and worked can be the biggest contribution to the sustainable economic growth and development of our crofting communities. Having an effective regulator is a vital part of achieving that aim.

The first Convener of the new Crofting Commission was Susan Walker who was appointed by the Scottish Government. At the time some thought that process should have been delegated to the commissioners themselves.

Clearly the minister doesn’t have enough confidence in the commission to allow them to choose their own convener.

Elsewhere we have heard of the spread of democracy through the Arab Spring.

Is it not time to allow democracy to apply in crofting and to have a Crofting Spring where the commission can be allowed to make its own decisions?

Tavish Scott, Shetland Liberal Democrat MSP, said:-

This is a terrible decision and is consistent with the command and control being exercised by the SNP government on a whole range of issues.

They won’t make an appointment unless they are sure the person passes the Saltire underpants test.

Why do they not trust the people who have been elected by the crofters to make the decision?

Mary Scanlon, Highlands and Islands Conservative MSP, said:-

Given that this was the first time that commissioners were chosen with a mandate from their own communities, it seems high-handed of the minister to appoint the convener himself.

If the nine commissioners were allowed to choose from among their own number the convener would have the confidence and respect of the others. That might not be the case if the appointment is made by the minister.

Rhoda Grant, Highlands and Islands Labour MSP, said:-

To choose the convener in this way, weights the process towards the three commissioners already chosen through the public appointments system.

The minister should allow the commission to choose its own convener.

Alasdair Allan, Western Isles SNP MSP, said:-

There must be a tie between the commission and the minister because it is a public body.

The minister has a choice among all the members.

If the six members chosen by the crofters are unhappy with what the government or the commission is doing they will not be slow to say that.

There is a majority of crofters’ representatives so it is not true to say that this is an attempt to control the commission.

Some commissioners were not too slow to show that they were unhappy and organised a coup against the incumbent convener. They then insisted that they should elect the new one. The minister responsible for crofting at the time, Aileen McLeod, allowed them to do so and Colin Kennedy was duly elected.

The result has been clear for all to see. It could not have been foreseen by the representative bodies and MSPs who called for this democratic process at the outset. In light of what has happened a future crofting minister might think twice about allowing commissioners to choose a convener themselves.

Fergus Ewing MSP, cabinet secretary responsible for crofting, has instituted a governance review of the Crofting Commission. Whatever the outcome of that review it should at least attempt to avoid despotism ever appearing again within the Crofting Commission.

Sunday Politics Scotland on BBC One Scotland this week looked at the crisis in the Crofting Commission.

Presenter Gordon Brewer introducing the topic said:-

Now Chaos on the Croft.

The body responsible for protecting and regulating Scotland’s crofting is embroiled in some dramatic internal politics of its own.

As Len Cooksley reports pressure is increasing on the head of the Crofting Commission to resign after the Scottish Government became involved.

Len Cooksley:-

Scotland has nearly 20,000 crofts overseen by the Crofting Commission.

After suspending two local grazing committees on Lewis on the grounds of financial missmanagement it was forced into a u-turn.

There were claims the commission were both heavy handed and may have acted illegally.

Now the Scottish Government’s got involved. It called on the commission and its convener, Colin Kennedy, to apologise.

Last week Mr Kennedy walked out of a commissioners meeting. Those that remained issued that apology and then passed a vote of no confidence in Mr Kennedy.

The First Minister gave her take on events in parliament earlier this week.

Nicola Sturgeon MSP:-

I note that crofting commissioners have unanimously called on the convener to resign.

The Scottish Government have requested further information from the convener in relation to last week’s events.

While the Government would not ordinarily intervene in the internal operations of an independent statutory body the legislation does give Scottish Ministers power to act if required.

Len Cooksley:-

MSPs are watching developments with interest.

Tavish Scott MSP:-

There is no doubt that there has been a fall out amongst commissioners and that has been caused by the behaviour of the convener of the Crofting Commission.

What this organisation needs now is a new convener, a reconstituted board and the ability to get back what it is meant to do and that is work for crofters right across Scotland.

Len Cooksley:-

We understand Mr Kennedy has no plans to resign but would make no further comment.

The implication is clear: either he jumps or he’ll be pushed.

Gordon Brewer:-

Well earlier I spoke to Brian Inkster who is a lawyer and blogger specialising in crofting matters.

Gordon Brewer asked:-

Well the crofting commissioners have no confidence in their leader. He won’t resign and the Scottish Government is threatening to get involved. What on earth is going on?

Brian Inkster answered:-

Well it all goes back to December time last year when they decided to put out of office a grazings committee in Lewis. The first one was Mangersta and then subsequently into 2016 they put out two other grazings committees: one in Upper Coll and the other in Lochaber.

Gordon Brewer:-

Right but what I don’t understand is that Mr Kenedy the man who is the commissioner is accused of issuing edicts on things like payments over common grazings and peoples backs are up about this. But how can he do that surely the commissioners have to decide to do this.

Brian Inkster:-

Well the commissioners should be deciding to do it. It looks as though he has been instrumental in pushing these issues forward.

And latterly there was an issue around VAT registration where it was being said that common grazings could not be VAT registered whereas historically they always have been.

Gordon Brewer:-

Right, now, what happened? At some point the commissioners had a vote of no confidence.

Brian Inkster:-

That was just over a week ago in Brora. That was on the back of Colin Kennedy walking out of a meeting. He closed the meeting and walked out on the basis that the commissioner for the Western Isles said he was no longer declaring an interest in the Western Isles cases which he had previously done and was now wanting to vote on any issues concerning the Western Isles.

Gordon Brewer:-

On the face of it you would think that if the commissioners have no confidence in him he has to go but he doesn’t does he because he was elected?

Brian Inkster:-

He was elected and there is nothing in the law that says if the commissioners have a vote of no confidence he must go. One would imagine that if all the commissioners are against you, if the Scottish Crofting Federation, NFU Scotland, MSPs across all cross parties and the press are all saying it’s time to go you would think what is the point of clinging on here.

Gordon Brewer:-

The Scottish Government has threatened to become involved. What can they do?

Brian Inkster:-

In terms of the Crofters (Scotland) Act 1993, Scottish Ministers have the power if they consider that a commissioner is unable or unfit to exercise the functions of a member or unsuitable to continue as a member they can then remove a member from office.

Gordon Brewer:-

Now, Brian Inkster, just to give us a little sense of what the background to this is because it is quite complicated. But is the issue underlying all this the use of land and the fact, for example, wind farms wants to come in or housing wants to come in and it is about whether the common ground is allocated to the community the funds from it or to individuals.

Brian Inkster:-

It is linked to the funds that come into a common grazings. On a common grazings, especially as you mentioned wind farming, so in recent times the potential for larger sums of money to come into a common grazings exists. And it is linked to the distribution of those monies and there was an insistance on the part of the convener that those monies had to be paid out as soon as it was received. That there was no ability to hold onto the money to use it to spend on improvements within the common grazings. The Scottish Government said that was not the correct view in law.

Gordon Brewer:-

Alright, we will have to leave it there. Brian Inkster thank you very much indeed for joining us.

Brian Inkster:-

Thank you.

Gordon Brewer:-

Well earlier I spoke to Colin Kennedy. He is the Crofting Commission boss who is in the middle of all of this controversy. I spoke to him on the telephone from Coll.

Gordon Brewer asked:-

Are you going to stay in the post?

Colin Kennedy responded:-

I have no intention of resigning.

Gordon Brewer:-

Why not?

Colin Kennedy:-

As matters stand, I believe the commission have acted wholly within the law at all times and until such times as we have legal advice to the contrary, I will maintain my position.

Gordon Brewer:-

But the Scottish Government has said it has the power to get involved. If they do get involved and say you have to go you will have to go won’t you?

Colin Kennedy:-

That will be the case, yes.

Gordon Brewer:-

So just to be clear on that. If the Scottish Government says look given that your commissioners have voted no confidence in you we don’t think you can stay in post you will have to resign.

Colin Kennedy:-

That may be the case.

Gordon Brewer:-

Why are you so determined? You walked out of the meeting didn’t you, the other week? Why have you fallen out with all of the commissioners?

Colin Kennedy:-

No I didn’t walk out of a meeting.

I formally declared the meeting closed in light of an advancement by a commissioner supported by the deputy accountable officer that they had obtained information from the standards commission which I requested sight of prior to determination which failed to materialise.

Accordingly given the nature of the business at hand I had no alternative other than to formally close the September meeting of the Crofting Commission prior to my departure.

Gordon Brewer:-

Okay, but the commissioners have said they no longer have any confidence in you. Which is not brilliant from your point of view is it?

Colin Kennedy:-

I am unaware of the commissioners having said they have no confidence in me.

Gordon Brewer:-

You are not aware of that?

Colin Kennedy:-

Correct.

Gordon Brewer:-

So as far as you are concerned what? The Crofting Commission is carrying on its work as per normal?

Colin Kennedy:-

Well I would suggest at this moment in time that the Crofting Commission conducted a meeting on 28th September which is in non compliance or in accordance with the standing orders of the Crofting Commission and therefore it would appear in my view to be ultra vires.

Gordon Brewer:-

So right. If they still have confidence in you why would they do that?

Colin Kennedy:-

I couldn’t comment on what they do at informally constituted meetings.

Gordon Brewer:-

So right. You think that they still have confidence in you but that they have held an ultra vires meeting without you for reasons that are inexplicable?

Colin Kennedy:-

Correct.

Gordon Brewer:-

The substance of this is about you, they allege, that you made various determinations about things like payments in the form of edicts – that they weren’t really consulted.

Colin Kennedy:-

Absolutely incorrect.

At no time under my leadership have any decisions been taken without full endorsement of the board and based on legal advice.

And if I could comment prior to those decisions as per the board minute of 15 September 2015, prior to taking any of those decisions a formal request was made to the Chief Executive to obtain legal advice to support the papers presented to the board on which the board took the decisions.

Gordon Brewer:-

Alright Colin Kennedy we have to leave it. Thank you very much for joining us.

Pressure is mounting on the head of the Crofting Commission to resign after the First Minister warned that the Government would intervene if it didn’t put its own house in order.

This follows a turbulent few months during which the Commission was forced to apologise to crofters in the Western Isles and then passed a vote of no confidence in its own convener.

Craig Anderson – BBC Reporting Scotland

Craig Anderson explains:-

Its feared by many as an idylic lifestyle, part time farming on small parcels of land with tiny rents.

There are almost 20,000 crofts in Scotland protected and regulated by government agency the Crofting Commission.

But the body is imploding. It suspended two local grazings committees in Lewis earlier this year on the grounds of financial mismanagment but was forced into a u-turn when that was ruled heavy handed if not illegal.

Brian Inkster commented:-

It all begins with the common grazings committees having been put out office. There were two put out of office in Lewis and one in Lochaber. It is really how the Crofting Commission has gone about that and the uproar that has caused.

Convener of the Crofting Commission, Colin Kennedy, storms out of the board meeting in Brora

Craig Anderson continued:-

The Scottish Government then called on the commission and its convener Colin Kennedy to apologise to the crofters involved.

Last week he stormed out of commissioners meeting. They issued an apology and then passed a vote of no confidence in Mr Kennedy.

So who’s running the show the First Minister was asked at Holyrood yesterday.

Nicola Sturgeon MSP answered:-

I note that crofting commissioners have unanimously called on the convener to resign.

The Scottish Government have requested further information from the convener in relation to last week’s events.

While the Government would not ordinarily intervene in the internal operations of an independent statutory body the legislation does give Scottish Ministers power to act if required.

Colin Kennedy and other crofting commissioners at Brora before he ended the meeting and walked out

Craig Anderson pointed out:-

I contacted Mr Kennedy at his home on the Island of Coll by phone earlier today and he told me he had no plans to resign but would make no further comment.

But the implication of the intervention by Nicola Sturgeon is clear: either he jumps or he will be pushed.

Tavish Scott MSP said:-

There is no doubt that there has been a fall out amongst commissioners and that has been caused by the behaviour of the convener of the Crofting Commission.

What this organisation needs now is a new convener, a reconstituted board and the ability to get back what it is meant to do and that is work for crofters right across Scotland.

Craig Anderson asked:-

But does any of this really matter to the people who actually live and work in our crofting communities?

Brian Inkster – Crofting Lawyer

Brian Inkster responded:-

People being removed from office unfairly and unjustifiably has a huge affect on small communities. Allegations made about people that have not been proven to be correct. It has split/divided communities, caused lots of problems.

Craig Anderson rounded the news item off:-

There is a saying that a croft is a piece of land surrounded by legislation. It’s an old joke, but never was a truer word spoken in jest.

The First Minister, Nicola Sturgeon MSP, answers questions from Tavish Scott MSP on the turmoil at the Crofting Commission

At First Minister’s Question Time in the Scottish Parliament today Tavish Scott MSP questioned the First Minister, Nicola Sturgeon MSP, over what could possibly be dubbed Broragate.

Tavish Scott asked:-

Is the First Minister aware of the turmoil in the Crofting Commission caused by the intolerable behaviour of the current convener?

Does she know that other commissioners have asked for his resignation and that the previous Chief Executive, Catriona Maclean, left because of the convener’s behaviour and the pressure that is being placed on commission staff?

In those circumstances will she and her rural secretary now take action to make the commission work for crofters across the crofting counties without the disruptive presence of the convener?

Tavish Scott MSP asking the First Minister questions on the turmoil at the Crofting Commission

First Minister Nicola Sturgeon answered:-

Well Tavish Scott raises a very important issue.

The Cabinet Secretary for the Rural Economy has already welcomed the apology from the board of the Crofting Commission but it is disappointing that the convener was not a party to that apology.

It is important that we get to the stage of being able to draw a line under recent events.

The resources spent on dealing with these issues by the commission would in my view be far better used in being an effective regulator in contributing to a sustainable future for crofting.

I note that crofting commissioners have unanimously called on the convener to resign.

The Scottish Government have requested further information from the convener in relation to last week’s events.

While the Government would not ordinarily intervene in the internal operations of an independent statutory body the legislation does give Scottish Ministers power to act if required, and I can assure Tavish Scott that the Cabinet Secretary continues to monitor the situation very closely and would be very happy to discuss it further with Tavish Scott.

You can watch this exchange between Tavish Scott and the First Minister on YouTube at about 24:42 in:-

Today’s Scottish Parliamentary election results saw the SNP form a minority administration with 63 seats. The Scottish Conservatives came second and form the opposition with 31 seats. Scottish Labour were in third place with 24 seats followed by the Scottish Green Party on six and Scottish Liberal Democrats on five.

What does this mean for the future of crofting law?

The SNP Manifesto states:-

Modernising Crofting

Crofting plays a unique role in Scotland’s Highlands and Islands heritage, bringing distinct social, economic and environmental benefits to communities. We will continue to provide public support for the continuation of crofting and to secure thriving crofting communities.

We will also introduce a new entrant’s scheme for crofting, explore the creation of new woodland crofts and publish a National Development Plan for Crofting.

Croft housing grants have been increased and we will continue to target support at those most in need. We will also re-introduce the Croft House Loan Scheme.

Crofters have long been concerned at overly complicated and outdated legislation so we will modernise crofting law and make it more transparent, understandable and workable in practice. We will also ensure new community landowners are not left out of pocket due to registering as the new landlord of crofts within their community owned estate.

So there is a clear commitment to “modernise crofting law and make it more transparent, understandable and workable in practice”. This must mean a new Crofting Bill being introduced during the next parliamentary term.

The last Minister for Environment, Climate Change and Land Reform (with responsibility for crofting) was Dr Aileen McLeod MSP. She failed to win the Galloway and West Dumfries constituency seat and missed out on getting a South Scotland Regional seat in the list vote. So inevitably there will be a new Minister for Environment, Climate Change and Land Reform.

Perhaps with a new Crofting Bill in the offing and the dreadful problems within the Crofting Commission that the new Minister has to tackle it is time for Nicola Sturgeon to appoint a dedicated Crofting Minister? Preferably one with a seat in the crofting counties.

Gone from Holyrood are the strong voices on crofting that came from Jamie Mcgrigor (Conservative), Rob Gibson (SNP), Jean Urquhart (Independent) and Dave Thompson (SNP). We will also miss Alex Fergusson (Conservative) who thought that crofting law is a complete mystery but amused us with his analogy of ‘The Crofting Law Hydra‘.

Returned to Holyrood are Tavish Scott (Liberal Democrat) and Rhoda Grant (Labour). Both of whom participated in Crofting Question Time at the Crofting Law Group Conference in March expressing strong views on the “mess” that is crofting law. I can’t see them holding back on the latest “mess” of ‘The Common Clearances‘.

New to Holyrood are Donald Cameron (Conservative) and Andy Wightman (Green Party). Again they both participated in Crofting Question Time at the Crofting Law Group Conference. Donald Cameron said there that it was “time for crofting law to be for the crofters and not the lawyers”. I think that ‘The Common Clearances’ is a clear testament to that sentiment.

Helping the SNP with the Crofting Bill, and routing out the alleged abuse of power at the Crofting Commission, must surely be all SNP MSPs within the crofting counties. Alasdair Allan (Western Isles) has already spoken out about ‘The Common Clearances’ with two ‘sacked’ grazings committees, that we know of, being within his constituency. Other SNP MSPs in the crofting counties include long time politician Michael Russell (Argyll and Bute) and newbie Kate Forbes (Skye, Lochaber and Badenoch), who I had the pleasure of discussing The Crofting Law Sump with at The Future of Crofting Conference in December. Maree Todd took the SNPs only Regional Seat in the Highlands & Islands so I would think she will take an active interest in crofting law which will affect many of her constituents.

The first opportunity for the new MSPs to flex their muscles on crofting matters might be the Cross-Party Group on Crofting at Holyrood. Expect a large attendance.

At the Crofting Law Conference (organised by the WS Society and the Crofting Law Group) held in the Signet Library, Edinburgh yesterday there was cross-party agreement on the need for crofting law reform.

Trudi Sharp, Deputy Director of Agriculture, Rural Development and Land Reform, in the Scottish Government stood in at the last minute for Dr Aileen McLeod MSP, Minister for Environment, Climate Change and Land Reform, who was unfortunately unwell and unable to deliver the keynote address on behalf of the Government.

Trudi Sharp indicated that she had yet to speak to anyone who would disagree with the sentiment that there was a need to simplify crofting legislation. She said:-

The Minister is clear that crofting legislation should be well thought through with stakeholders and deliver law that is modern, simple and fit for purpose.

This was followed by ‘Crofting Question Time’ moderated by Jean Urquhart MSP with the opposition MSPs/election candidates being joined for that session by Rob Gibson MSP, Scottish National Party.

There was little in the way of disagreement about the need for crofting law reform.

Rhoda Grant MSP said:-

The 2010 Act is a mess and probably needs to be revoked altogether.

This was echoed by Tavish Scott MSP who said:-

The less said about the 2010 Act the better. It is one of the worst pieces of legislation ever passed by the Scottish Government.

He added:-

Crofting Law has been a mitigated mess and devolution has not helped take it forward.

Both Tavish Scott and Rhoda Grant were of the view that crofting can mean different things in different areas. Shetland, for example, is very different to other areas that may work in a more communal way. They felt the current legislation does not recognise these differences.

Donald Cameron was of the view that it was “time for crofting law to be for the crofters and not the lawyers”. He warned though that “if you legislate in haste on crofting law you will repent at leisure”.

It is heartening to see such cross-party support for crofting law reform. The word ‘mess’ was used more than once to describe the current state of crofting legislation. It is to be hoped that the next Scottish Government take cognisance of this and put crofting high on their agenda for new legislation during the next parliamentary term.

Photo Credit: All photos are by Rob McDougall for the Crofting Law Group

Part of this year’s Crofting Law Conference (organised by the Crofting Law Group in association with the WS Society) will take the form of a hustings on crofting law. With the Scottish Parliamentary Elections looming there is great interest in crofting circles as to what the next Scottish Government might do to resolve the many problems in existing crofting legislation identified by The Crofting Law Sump Report.

The conference will take place at the Signet Library in Edinburgh on 17th March 2016 and is Chaired by Sir Crispin Agnew of Lochnaw Bt., QC, Chairman of the Crofting Law Group.

Brian Inkster, Hon Secretary of the Crofting Law Group, will provide an introduction as to where we are at with ‘The Crofting Law Sump’. Then Dr Aileen McLeod MSP, Minister for Environment, Climate Change and Land Reform will keynote on the current Scottish Government’s position on crofting law. She will be followed by the ‘Views on Crofting Law from the Opposition’ from MSPs and representatives from other political parties. The crofting law hustings will culminate with an opportunity for delegates to put their own questions to the panel in a ‘Crofting Question Time’ session. Participants are:-

Jean Urquhart MSP, Independent (moderating ‘Crofting Question Time’)

Rob Gibson MSP, Scottish National Party

Rhoda Grant MSP, Scottish Labour

Tavish Scott MSP, Scottish Liberal Democrats

Donald Cameron, election candidate for Scottish Conservative and Unionist Party

Andy Wightman, election candidate for Scottish Green Party

Following on from the crofting law hustings several recognised specialist speakers will present on Crofting Succession and Crofting Mortgages and representatives from both the Crofting Commission and Registers of Scotland will be there to discuss current issues. There will also be a case law update. Speakers and panellists include:

David Findlay, Solicitor, Crofting Commission

Rod Maclean, Solicitor, Murchison Law

Jill Clark, Head of Civil Law Reform Unit, Justice Directorate, Scottish Government

If we lived in a perfect world would we have had the Battle of the Braes or any need for crofting law?

At the evidence taking session on the Crofting (Amendment) (Scotland) Bill on 15th May there was an exchange between Tavish Scott MSP, Richard Frew (Scottish Government) and Rob Gibson MSP that was quite enlightening on the Government’s stance on the problems associated with decrofting applications by owner-occupiers as opposed to by owner-occupier crofters. It would appear that the Government does not consider, as Tavish Scott perhaps does, this to be a “significant” issue.

I rather think this is because the Scottish Government has simply not thought through the consequences of the Crofting Commission’s stance on this issue. As I have indicated before now, owner-occupiers are, in certain circumstances, being quite simply prevented from decrofting. Furthermore it is arguable that decrofting directions issued by the Crofting Commission between 1 October 2011 and 18 February 2013 to owner-occupiers are, in certain circumstances, invalid with all the consequences that flow from that not only for those owner-occupiers but also for third party purchasers and lenders who have relied on the decrofting directions in question. That is not significant?!

Richard Frew appeared to suggest that the matter was perhaps adequately covered by the fact that “people who were, in effect, owner-occupiers prior to the 2010 Act can apply jointly to the Commission, as long as they do it collectively as landlords.”

Tavish Scott quite rightly rebounded that:-

The point is that those people are not agreeing to act jointly in that way. If that was happening, I would agree with you entirely.

The quite surprising response by Richard Frew to this was:-

I would hope that everybody would be able to work together at some point to recognise the benefits.

To which Tavish Scott replied:-

We do not live in a perfect world, Mr Frew.

Indeed we do not. If we did then perhaps we would have the Crofting Commission working together with crofters by interpreting crofting legislation in a way that was to their benefit rather than to their detriment!

Richard Frew’s response does, of course, ignore the question of the potentially invalid decrofting directions that may be out there.

On the question of when will this issue be dealt with Richard Frew stated:-

When and whether we address that, and whether particular legislation is introduced at any time is really a matter for the minister, rather than for civil servants, to determine.

We all know that the minister will base his decisions on advice received from civil servants and it is somewhat worrying if the civil servants are not up to speed with what the problems actually are. In particular Rob Gibson asked:-

That is an interesting issue that might affect some crofters. We do not know how many—unless Mr Frew can give us a ballpark figure at the moment.

The response from Richard Frew was:-

I am not aware of the exact figures, but I am sure that the Commission has a list of the different types of crofter.

How can the Government state that this is not a significant issue when they have no figures at their fingertips regarding the number of people affected by it? Surely this should have been fundamental research in deciding whether or not to include this issue in the Crofting (Amendment) (Scotland) Bill?

[Picture Credit: The painting (1994) by Douglas Chowns is in the Collection of Sabhal Mòr Ostaig. It shows the artist’s imagining of the famous ‘Battle of the Braes’ that took place in Skye in 1882. It was part of a long struggle for crofters throughout the Highlands to win fair rents and security of land from the landowners during the nineteenth century.]

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About the Crofting Law Blog

This blog explores crofting law.
It is brought to you by Inksters Solicitors, a law firm specialising in crofting law, with offices in Glasgow, Inverness, Forfar, Portree, Wick and a visiting base in Lerwick.
The main authors of posts on this blog are Brian Inkster and Martin Minton.